Letter to the Editor: A Reply to Ryan Goodman on Civilian Casualties

Ryan makes an excellent point. Whether 10 “civilian casualties” are worse than 9 depends on context. It’s entirely possible that 10 is legally permissible and that one would be a human rights violations and/or war crime, even if that one were “collateral damage” rather than a target.

A couple of other observations:

Despite that the CIA and DoD, as Ryan notes, a) operate in different environments and b) have different target lists, they are bound by the same international legal restraints. When operating in armed conflict, pursuant to the law of armed conflict (law of war) they may target members of enemy armed forces at anytime and civilians only while they are directly participating in hostilities. When operating outside of armed conflict, pursuant to human rights law, they may target only in self-defense, meaning persons who pose an imminent threat to American lives that cannot be ameliorated by means short of lethal force. There is no basis for the occasionally asserted notion that only the DoD is bound by the laws of war. Even if that were true, it would simply mean that the CIA is bound by the more restrictive, not more permissive, restrictions of human rights law. Conversely, just because we employ military force, does not mean the law of armed conflict applies. The oft-heard claim by DoD that it always abides by the law of war is not necessarily laudable. When the military acts outside of armed conflict, it may not target under law-of-war powers. It may only target under more restrictive human rights law criteria.

Ryan notes two possible bases for civilian casualties: error (targeting an untargetable person, presumably due to bad intel) and collateral damage (attendant to targeting a targetable person). But there is a third category which perhaps overshadows the first two. There’s reason to believe, judging from the administration’s piecemeal disclosures, that U.S. targeting protocols do not comply with international law restrictions. This is a form of error, but systematically killing people based on bad lawyering is more pernicious than occasionally killing them due to bad intel.

Finally, the term “civilian” is a misnomer except where juxtaposed against “combatant.” Outside of war, there may be targeted killings (see above re: imminent threat) but there are no combatants. In these instances, all persons, whether targetable or not, are civilians and use of the combatant/civilian distinction dangerously risks assumption that the more permissive law-of-war standards apply, rather than the more restrictive human rights law standards.

Gabor Rona is the International Legal Director of Human Rights First and teaches International Humanitarian Law at Columbia Law School.